So while the legal community drew a deep breath Monday, after United States Supreme Court Justice Sonia Sotomayor excoriated a federal prosecutor in Texas for making racist remarks during a criminal trial, no one spent much time pointing out that the person prejudiced by the remarks, a defendant named Bongani Charles Calhoun, was granted no relief by the justices. "I hope never to see a case like this again," Justice Sotomayor wrote, but even if she did there is no reason to think this Court would help the person whose rights were violated. That's the real scandal here.

Even as Justice Sotomayor commented* from the denial of certiorari in Calhoun v. United States, even as she expressed disdain for the "deep and sorry vein of prejudice" exposed by the prosecutor's words, even as she blasted federal officials in Washington for glossing over the problem, she acknowledged along with the rest of her colleagues that Calhoun had no remedy because his attorneys had not raised the issue in the proper fashion. This is what passes for justice today in criminal procedure -- form is elevated over substance; process trumps prejudice.

Here's how Justice Sotomayor wrote it up:

The issue of Calhoun's intent came to a head when the prosecutor
cross-examined him. Calhoun related that the night before the arrest, he had
detached himself from the group when his friend arrived at their hotel room
with a bag of money. He stated that he "didn't know" what was happening, and
that it "made me think . . . [t]hat I didn't want to be there." Tr. 125-126
(Mar. 8, 2011). (Calhoun had previously testified that he rejoined the group
the next morning because he thought they were finally return­ing home. Id., at
109.)

The prosecutor pressed Calhoun repeatedly to explain why he did not want
to be in the hotel room. Eventually, the District Judge told the prose­cutor to
move on. That is when the prosecutor asked, "You've got African Americans,
you've got Hispanics, you've got a bag full of money. Does that tell you -- a
light bulb doesn't go off in your head and say, This is a drug deal?" Id., at
127.

Calhoun, who is African American, claims that the prosecutor's racially charged question violated his constitutional rights. Inexplicably, however, Calhoun's counsel did not object to the question at trial. So Calhoun's chal­lenge comes to us on plain-error review, under which he would ordinarily have to "demonstrate that [the error] 'affected the outcome of the district court proceedings.'" Puckett v. United States, 556 U. S. 129, 135 (2009) (quot­ing United States v. Olano, 507 U. S. 725, 734 (1993)).

Yet in his petition for writ of certiorari, Calhoun does not attempt to make that showing. Instead, Calhoun contends that the comment should lead to automatic reversal be­cause it constitutes either structural error or plain error regardless of whether it prejudiced the outcome. Those arguments, however, were forfeited when Calhoun failed to press them on appeal to the Fifth Circuit. Given this posture, and the unusual way in which this case has been litigated, I do not disagree with the Court's decision to deny the petition.*

FN* The prosecutor's comment was not an isolated one, but Calhoun similarly failed to challenge the reprise. During defense counsel's closing argument, counsel belatedly criticized the prosecutor's question. On rebuttal, the prosecutor responded: "I got accused by [defense counsel] of, I guess, racially, ethnically profiling people when I asked the question of Mr. Calhoun, Okay, you got African American[s] and Hispanics, do you think it's a drug deal? But there's one element that's missing. The money. So what are they doing in this room with a bag full of money? What does your common sense tell you that these people are doing in a hotel room with a bag full of money, cash? None of these people are Bill Gates or computer [magnates]? None of them are real estate investors." Tr. 167-168 (Mar. 8, 2011).

To Justice Sotomayor, these exchanges were "pernicious." She wrote:

By suggesting that race should play a role in establish­ing a
defendant's criminal intent, the prosecutor here tapped a deep and sorry vein
of racial prejudice that has run through the history of criminal justice in our
Nation. There was a time when appeals to race were not uncom­mon, when a
prosecutor might direct a jury to "'consider the fact that Mary Sue Rowe is a
young white woman and that this defendant is a black man for the purpose of
determining his intent at the time he entered Mrs. Rowe's home,'" Holland v.
State, 247 Ala. 53, 22 So. 2d 519, 520 (1945), or assure a jury that "'I
am well enough acquaint­ed with this class of niggers to know that they have
got it in for the [white] race in their heart,'" Taylor v. State,
50 Tex. Crim. 560, 561, 100 S. W. 393 (1907).

The prosecu­tor's comment here
was surely less extreme. But it too was pernicious in its attempt to substitute
racial stereo­type for evidence, and racial prejudice for reason.

It is deeply disappointing to see a representative of the United
States resort to this base tactic more than a decade into the 21st century.
Such conduct diminishes the dig­nity of our criminal justice system and
undermines respect for the rule of law. We expect the Government to seek
justice, not to fan the flames of fear and prejudice. In discharging the duties
of his office in this case, the Assis­tant United States Attorney for the
Western District of Texas missed the mark.

Also troubling are the Government's actions on appeal. Before the
Fifth Circuit, the Government failed to recog­nize the wrongfulness of the
prosecutor's question, instead calling it only "impolitic" and arguing that
"even assuming the question crossed the line," it did not prejudice the
outcome. Brief for United States in No. 11-50605, pp. 19, 20. This prompted
Judge Haynes to "clear up any confu­sion--the question crossed the line." 478
Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). In this Court, the
Solicitor General has more appropriately conceded that the "prosecutor's racial
remark was unquestionably im­proper." Brief in Opposition 7-8.

"Pernicious." A "base tactic." Substituting "racial stereotype for evidence, and racial prejudice for reason." But sorry, Mr. Calhoun, we can't help you today, because your lawyer didn't object when he was supposed to. That's not justice. That's a perversion of justice. Meanwhile, know what else is a scandal? The prosecutor in question, Assistant U.S. Attorney Sam Ponder, still has his job.

*I originally labeled her comments as a dissent. She did not dissent, of course, which would at least have been more consistent with the argument she made.

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